Madison Two Associates v. Pappas ( 2008 )

Docket Nos. 104321, 104322, 104333 cons.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
MADISON TWO ASSOCIATES et al., Appellees, v. MARIA
PAPPAS, Treasurer and Ex Officio Collector of Cook County,
Appellant.
Opinion filed February 22, 2008.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, and
Garman concurred in the judgment and opinion.
Justice Kilbride dissented, with opinion.
Justice Burke took no part in the decision.
OPINION
The issue in this case is whether taxing districts have the right to
petition for leave to intervene in real estate tax objection cases filed by
taxpayers in the circuit court of Cook County pursuant to the
Property Tax Code (35 ILCS 200/1–1 et seq. (West 2002)). The
circuit court held that such intervention was not permitted as a matter
of law. It therefore denied petitions filed by the City of Chicago and
the Chicago Board of Education under section 2–408 of the Code of
Civil Procedure (735 ILCS 5/2–408 (West 2002)) seeking leave to
intervene in 30 Cook County tax objection cases. In so doing, the
court made an express written finding under Supreme Court Rule
304(a) (210 Ill. 2d R. 304(a)) that there was no just reason for
delaying either enforcement or appeal. The cases were then
consolidated for review, and the appellate court reversed and
remanded. 371 Ill. App. 3d 352.1 The county collector of Cook
County and two groups of taxpayers led, respectively, by Madison
Two Associates and Shorenstein Realty Advisors, petitioned our court
for leave to appeal. 210 Ill. 2d R. 315. We consolidated the three
petitions and allowed them. We also allowed a consortium of 41
public school districts to file an amicus curiae brief in support of
respondents, the City and the Board of Education. For the reasons
that follow, the judgment of the appellate court is affirmed, and the
matter will be remanded to the circuit court for a determination as to
whether the petitions for leave to intervene filed by the City and the
Board of Education should be granted.
The circumstances giving rise to the appeal are straightforward.
Petitioner Madison Two Associates (Madison Two) holds an interest
in certain real property located at 70 West Madison Street, in the City
of Chicago, which is located in Cook County. The Cook County
assessor’s office determined that the property had a certain market
value for the year 2001. Believing that this assessed value was too
high, Madison Two filed a complaint with the Cook County board of
review under section 16–95 of the Property Tax Code (35 ILCS
200/16–95 (West 2002)) asking that the assessment be reduced.
Madison Two was entitled to seek such relief because it was a
taxpayer with an interest in the property. By law, however, the
assessment could also have been challenged by any taxpayer or any
taxing district that has an interest in the assessment. 35 ILCS
200/16–95, 16–115 (West 2002).
After the board of review rendered its decision on Madison Two’s
complaint, Madison Two believed that the value at which its property
was assessed for 2001 remained too high. Under the Property Tax
Code, it had two options for challenging the board of review’s
1
As detailed by the appellate court, 7 of the 30 original actions were
dismissed by the circuit court and 10 others were “resolved and/or
dismissed” after the appeal was filed. 371 Ill. App. 3d at 353 n.1. Two more
were settled and dismissed after the case reached our court.
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decision: (1) it could have filed an appeal with the Property Tax
Appeal Board (Board) (see 35 ILCS 200/16–160 (West 2002); 86 Ill.
Adm. Code §1910.60(a) (2007) (amended at 31 Ill. Reg. 16222, eff.
November 26, 2007)), or (2) it could have paid the real estate tax due
on the property (see 35 ILCS 200/23–5 (West 2002)), and then filed
a “tax objection complaint” with the circuit court of Cook County (see
35 ILCS 200/23–10 (West 2002)).2 Where valuation is at issue, as is
the case here, these options are mutually exclusive. If a taxpayer seeks
review before the Property Tax Appeal Board, he or she is precluded
from filing objections based upon valuation in the circuit court.3 In the
same way, if a taxpayer files objections based upon valuation in the
circuit court, the taxpayer cannot file a petition contesting the
assessment of the subject property with the Property Tax Appeal
Board. 35 ILCS 200/16–160 (West 2002); 86 Ill. Adm. Code
§§1910.50(f), (g) (2007) (amended at 31 Ill. Reg. 16222, eff.
November 26, 2007).
As with a challenge to the assessor’s valuation in the board of
review, the right to seek review of the board of review’s decision
through the Property Tax Appeal Board or by means of a tax
objection suit is not limited to taxpayers with an interest in the
property. Appeals to the Board may also be brought by “any taxing
body that has an interest” in the board of review’s decision (35 ILCS
200/16–160 (West 2002); 86 Ill. Adm. Code §1910.10(c) (2007)
2
Unlike the tax objection alternative, paying the property tax is not a
prerequisite for seeking relief from the Property Tax Appeal Board. Pursuing
the appeal through the Board does not, however, stay the obligation to pay
the contested tax. If the tax falls due before the Board issues its decision, the
tax must still be paid. If the Board subsequently lowers the assessment, any
taxes paid on the portion of the assessment determined to have been
unauthorized must be refunded with interest. 35 ILCS 200/16–185 (West
2002).
3
Final decisions of the Board are, however, subject to judicial review
pursuant to the Administrative Review Law (735 ILCS 5/3–101 et seq.
(West 2002)). Where a change in assessed valuation of $300,000 or more is
sought, review is taken directly to the district of the appellate court in which
the property is located. 35 ILCS 200/16–195 (West 2002).
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(amended at 21 Ill. Reg. 3706, eff. March 6, 1997); 86 Ill. Adm. Code
§1910.60(b) (2007) (amended at 31 Ill. Reg. 16222, eff. November
26, 2007)), while tax objection complaints in circuit court may be filed
by “any person [who] desires to object to all or any part of a property
tax *** for any reason other than that the property is exempt from
taxation.” (Emphasis added.) 35 ILCS 200/23–5 (West 2002); see 35
ILCS 200/23–10 (West 2002). Under the Property Tax Code, the
term “person” is defined to include a “corporation, company, firm,
society, singular or plural number.” 35 ILCS 200/1–125 (West 2002).
Proceedings before the Property Tax Appeal Board are governed
by rules of practice and procedure promulgated by that body. See 35
ILCS 200/16–165, 16–170 (West 2002). These rules are set forth at
86 Ill. Adm. Code §1910.5 et seq. Under the Board’s rules,
participation in the appeal is not limited to the party who initiated it.
Where an appeal has been filed by a taxpayer with respect to a
decision pertinent to his or her own property, a taxing body with a
revenue interest in the appeal may intervene. 86 Ill. Adm. Code
§1910.60(d) (2007) (amended at 31 Ill. Reg. 16222, eff. November
26, 2007). Conversely, where the appeal has been brought by a taxing
body with a revenue interest in the decision of the board of review, the
owner or taxpayer whose property is involved may intervene. 86 Ill.
Adm. Code §1910.60(c) (2007) (amended at 31 Ill. Reg. 16222, eff.
November 26, 2007).
While the Board’s rules and regulations apply to proceedings
before that body, the procedures followed in circuit court on tax
objection complaints are governed by the Property Tax Code itself
and, where it is silent, by article II of the Code of Civil Procedure
(735 ILCS 5/2–101 et seq. (West 2002)) and the rules of our court.
Just as the rules and regulations governing appeals to the Board
provide a mechanism for allowing additional parties to participate in
such appeals, the Property Tax Code permits additional parties to
participate in tax objection proceedings in circuit court. They may do
so through either joinder or intervention. Section 23–15(a) of the
Property Tax Code (35 ILCS 200/23–15(a) (West 2002)) governs
joinder. It provides that joinder of additional parties as plaintiffs in the
tax objection proceeding “shall be permitted to the same extent
permitted by law in any personal action pending in the court and shall
be in accordance with Section 2–404 of the Code of Civil Procedure
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[735 ILCS 5/2–404 (West 2002)].” 35 ILCS 200/23–15(a) (West
2002). Section 2–404 of the Code of Civil Procedure, in turn, states
that
“[a]ll persons may join in one action as plaintiffs, in whom
any right to relief in respect of or arising out of the same
transaction or series of transactions is alleged to exist, whether
jointly, severally or in the alternative, whenever if those
persons had brought separate actions any common question of
law or fact would arise.” 735 ILCS 5/2–404 (West 2002).
Unlike joinder, the Property Tax Code does not specify when
intervention is permissible. As we have indicated and as has long been
established, when the Property Tax Code is silent on a matter of
procedure, the procedures specified by article II of the Code of Civil
Procedure and the rules of our court apply instead. 735 ILCS
5/1–108(b) (West 2002); People ex rel. Southfield Apartment Co. v.
Jarecki, 408 Ill. 266, 272 (1951); see ABN Ambro Services Co. v.
Naperville Park District, 325 Ill. App. 3d 7, 10 (2001). The Code of
Civil Procedure includes a provision governing intervention. See 735
ILCS 5/2–408 (West 2002). That provision has been held to apply to
tax objection proceedings brought in circuit court under the Property
Tax Code. See ABN Ambro Services Co. v. Naperville Park District,
325 Ill. App. 3d at 11. It has, in fact, been followed by our own court
in tax objection proceedings. In re Application of the County
Collector of Du Page County for Judgment for Delinquent Taxes for
the Year 1992, 181 Ill. 2d 237, 247-48 (1998) (rejecting objectors’
argument that trial court erred in allowing intervention by park
districts); see People ex rel. Skidmore v. Anderson, 56 Ill. 2d 334
(1974) (allowing and resolving appeal brought by intervening school
districts). The provision states, in pertinent part:
“(a) Upon timely application anyone shall be permitted as
of right to intervene in an action: (1) when a statute confers an
unconditional right to intervene; or (2) when the
representation of the applicant’s interest by existing parties is
or may be inadequate and the applicant will or may be bound
by an order or judgment in the action; or (3) when the
applicant is so situated as to be adversely affected by a
distribution or other disposition of property in the custody or
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subject to the control or disposition of the court or a court
officer.
(b) Upon timely application anyone may in the discretion
of the court be permitted to intervene in an action: (1) when
a statute confers a conditional right to intervene; or (2) when
an applicant’s claim or defense and the main action have a
question of law or fact in common.
***
(f) An intervenor shall have all the rights of an original
party, except that the court may in its order allowing
intervention, whether discretionary or a matter of right,
provide that the applicant shall be bound by orders or
judgments, theretofore entered or by evidence theretofore
received, that the applicant shall not raise issues which might
more properly have been raised at an earlier stage of the
proceeding, that the applicant shall not raise new issues or add
new parties, or that in other respects the applicant shall not
interfere with the control of the litigation, as justice and the
avoidance of undue delay may require.” 735 ILCS 5/2–408
(West 2002).
Madison Two elected not to challenge the board of review’s
assessment decision through an appeal to PTAB. Instead, it chose to
pay the tax due on the subject property and then file a tax objection
complaint in circuit court. In accordance with section 23–15 of the
Property Tax Code (35 ILCS 200/23–15(a) (West 2002)), Madison
Two’s complaint named as defendant the Cook County collector,
Maria Pappas.4 The complaint alleged that the assessment of the
subject property was incorrect, illegal and excessive. By way of relief,
it requested that the county collector be ordered to refund the taxes
she had collected based on the excessive portion of the assessment.
See 35 ILCS 200/23–15(b)(3), (c) (West 2002).
During the same period Madison Two filed its tax objection
complaint, numerous other taxpayers, including petitioner Shorenstein
Realty Advisors, filed similar tax objection complaints in the circuit
4
Pappas serves as the county collector by virtue of her office as treasurer
of Cook County. 35 ILCS 200/19–35 (West 2002).
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court of Cook County challenging decisions by the Cook County
board of review with respect to the valuation of property in which
they held interests. In 30 of these cases, including Madison Two’s, the
City of Chicago (the City) and the Chicago Board of Education (the
Board of Education) filed joint petitions pursuant to section 2–408 of
the Code of Civil Procedure (735 ILCS 5/2–408 (West 2002)) seeking
leave to intervene. Intervention was sought by the City and the Board
of Education in order to oppose the objectors’ attempts to reduce the
assessments below the amounts set by the board of review.
All 30 cases in which intervention was requested involved major
commercial buildings in downtown Chicago. The properties included
the Sears Tower, the Aon Building, the John Hancock Center, Bank
One Plaza (now known as Chase Tower), One and Two Prudential
Plaza, 900 N. Michigan Ave., Three First National Plaza, The
Emporis Building, the Sheraton Chicago Hotel and Towers, the
United Building, Madison Plaza, Two Illinois Center, 321 North Clark
Street (formerly known as the Quaker Tower), the Hyatt Regency
Chicago, the Heller International Building, the Chicago Title Tower,
the Chicago Mercantile Exchange, One IBM Plaza/330 N. Wabash,
the Hilton Chicago, the Palmer House Hilton and Water Tower Place.
The reason the City and the Board of Education sought to participate
in these particular cases is the magnitude of the assessment reductions
and corresponding property tax refunds they requested. If full relief
were granted, tax refunds averaging over $1 million per property
would be necessary.
The various petitions for intervention filed by the City and the
Board of Education were all similar in form and content. They alleged,
inter alia, that the City and the Board of Education should be
permitted to join in the proceedings because: (1) the City and the
Board of Education are taxing districts whose revenues would be
adversely affected if the court allowed the various objections and
reduced the assessed valuations (see 735 ILCS 5/2–408(a)(3) (West
2002)), (2) their claims or defenses with respect to the challenged
assessments are predicated on the same questions of law and fact at
issue in the objections filed by the taxpayers (see 735 ILCS
5/2–408(b)(2) (West 2002)), and (3) the State’s Attorney lacks the
resources necessary to adequately defend the board of review’s
assessment decisions and they will be bound by any order or judgment
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entered by the circuit court in the circuit court proceedings attacking
those assessment decisions (see 735 ILCS 5/2–408(a)(2) (West
2002)).
The Cook County collector, represented by the Cook County
State’s Attorney, filed written responses to the intervention petitions.
Although the collector denied the intervenors’ claims that the State’s
Attorney lacked sufficient resources to adequately defend the
County’s interests, she advised the court that intervention by the City
and the Board of Education “may assist in the expeditious resolution
of this matter by affording additional resources, including providing
appraisals in addition to those appraisals obtained by the Collector.”
The collector further stated that the position of the City and the Board
of Education with respect to these cases presented “a situation unique
among the tax objections cases that are generally pending in [the
circuit court of Cook County]” because the subject property was of
“a singular type and class *** that comprises a disproportionately
large part of the overall assessed value of the real estate tax base” of
those taxing districts. The collector likewise acknowledged that the
reductions in the assessed valuations and the tax refunds such
reductions would require would have a considerable impact on both
the City and the Board of Education.
In light of these considerations, the county collector advised the
court that she had no objections to allowing the City and the Board of
Education to intervene. Her approval, however, was not
unconditional. The collector asserted that if intervention were
permitted, it should be subject to the qualification that the State’s
Attorney retained sole authority to control the defense in the case and
to compromise objectors’ claims pursuant to section 23–30 of the
Property Tax Code (35 ILCS 200/23–30 (West 2002)) and related
provisions of the law. The collector expressly noted that such a
limitation would be permissible under section 2–408(f) of the Code of
Civil Procedure, which we set forth earlier in this opinion.
The tax objectors in the various cases also filed responses to the
petitions for leave to intervene. In contrast to the county collector,
they opposed intervention by the City and the Board of Education
under any circumstances. They argued that the taxing districts have no
legally cognizable interest in tax objection cases, that Property Tax
Code does not authorize taxing districts to intervene in such cases and
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that permitting taxing districts to participate in tax objection litigation
would usurp the authority vested by law in the State’s Attorney. Even
if taxing districts were found to possess the right to intervene, they
contended, intervention should not be permitted in this case because
the City and the Board of Education had failed to exhaust their
administrative remedies and their attorneys had not obtained the
requisite legal authority to bring judicial proceedings.
The City and the Board of Education filed joint replies to the tax
objectors’ responses, disputing each of their arguments. A hearing was
then conducted during which the court heard lengthy arguments by
counsel. At the conclusion of that hearing, the circuit court announced
that it would not permit either the City or the Board of Education to
intervene. The court based that decision on its belief that, contrary to
the authorities cited earlier in this opinion, the Property Tax Code
should not be construed as authorizing taxing districts to intervene in
tax objection cases, at least where, as here, the objection challenges
the assessed valuation of the property, and that section 2–408 of the
Code of Civil Procedure (735 ILCS 5/2–408 (West 2002)) is
inapplicable to such proceedings. In light of that conclusion, the court
had no occasion to reach the question of whether the requirements of
section 2–408 would otherwise have been satisfied here.
After announcing his ruling, the circuit judge asked the parties to
prepare a written order for his signature. They did so. That order,
which the trial judge signed, included an express written finding under
Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)) that there was no
just reason for delaying either enforcement or appeal. The trial judge
subsequently entered an additional order consolidating all of the cases
for the limited purpose of appealing the denial of the petitions to
intervene. The following day, the City and the Board of Education
filed a joint notice of appeal.
As indicated earlier in this opinion, the appellate court reversed
and remanded. Rejecting the circuit court’s analysis, the appellate
court concluded that section 2–408 of the Code of Civil Procedure
(735 ILCS 5/2–408 (West 2002)) may be invoked by taxing districts
in tax objection cases, including those involving assessed valuation
issues. It remanded because it believed that a hearing was still
necessary regarding whether the City and the Board of Education had
satisfied the requirements for intervention under subsection (a)(2) or
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(a)(3) of that statute (735 ILCS 5/2–408(a)(2), (a)(3) (West 2002)).
371 Ill. App. 3d at 358.5 Although one justice dissented, that justice
did not dispute that taxing districts have the right to seek intervention
in tax objection cases pursuant to section 2–408.
The Cook County collector and the two groups of tax objectors
led, respectively, by petitioners Madison Two and Shorenstein Realty
Advisors, each filed separate petitions in our court seeking leave to
appeal from the appellate court’s judgment. We allowed all three
petitions and consolidated the cases for purposes of briefing, argument
and disposition. The central issue before us is the same in each case.
It is not whether the particular taxing districts involved here should
have been allowed to intervene. That is a question which neither the
circuit court nor the appellate court reached. The problem they took
up and the one we must now resolve is whether, as a matter of law,
taxing districts may ever intervene in tax objection cases brought
pursuant to section 23–10 of the Property Tax Code (35 ILCS
200/23–10 (West 2002)) in counties with 3,000,000 or more
inhabitants. Because this is a question of law, our review is de novo.
See Wade v. City of North Chicago Police Pension Board, 226 Ill. 2d
485, 505 (2007).
We consider first the challenge asserted by the county collector,
for it is easily resolved. The collector contends that the appellate
court’s decision is fatally infirm because it will have the effect of
permitting taxing authorities to usurp the Cook County State’s
Attorney’s constitutional authority to conduct and control litigation
on behalf of the County and its statutory authority to compromise tax
objections. That is not so. It will do neither. The effect of the appellate
court’s judgment is simply to confirm that taxing districts have the
right to intervene in tax objection cases pending in circuit court, just
as they have the right to intervene in proceedings before the board of
review and appeals to the Property Tax Appeal Board.
5
While the City and the Board of Education also invoked subsection (b)
of the statute (735 ILCS 5/2–408(b) (West 2002)) in its petitions and
argument in the circuit court, they apparently abandoned reliance on that
provision when they reached the appellate court.
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As a constitutional officer whose duties are analogous to and
coincident with those of the Attorney General, a State’s Attorney is
the only person empowered to represent a county in matters when the
county is the real party in interest. County of Cook ex rel. Rifkin v.
Bear Stearns & Co., 215 Ill. 2d 466, 483 (2005). In this case,
however, Cook County is clearly not the only real party in interest.
Numerous taxing districts, including the City and the Board of
Education, also have a legally cognizable interest in the outcome of
these proceedings. Under the Illinois Constitution of 1970, these
governmental entities are separate and distinct from the County. See
Ill. Const. 1970, art. VII, §§1, 2, 8. In seeking intervention in these
proceedings, the only interests they seek to advance are their own. In
no way are they attempting to direct the actions of the County, its
officials or its legal representative, the State’s Attorney.
That the State’s Attorney and only the State’s Attorney has the
authority to compromise a tax objection claim is indisputable. See 35
ILCS 200/23–30 (West 2002). If the State’s Attorney elects not to
compromise, however, the propriety of the board of review’s
valuation decision will be for the circuit court to decide based upon
the evidence and the law as presented by the parties. Through
intervention, the City and the Board of Education hope to persuade
the circuit court that the board of review’s decision should be reduced
no further, just as the tax objectors will attempt to persuade the court
that the board of review’s decision is contrary to law and excessive.
No one would could possibly find a usurpation of a State’s Attorney’s
authority in a taxpayer’s attempt to persuade the circuit court that a
board of review’s valuation decision is incorrect and should be
lowered. That being so, there can likewise be no suggestion of
usurpation in a taxing body’s attempt to persuade the circuit court that
the board of review’s decision on valuation is already too low and
should be reduced no further. To hold otherwise would require us to
adopt the untenable view that mere advocacy of a position is
equivalent to control over how a case is decided.
The county collector has suggested that if we do not reverse the
appellate court and bar intervention, tax objection suits will become
clogged with taxing districts each insistent on having their own say
regarding the challenged assessment. If that were so, however, one
would expect to see a similar problem with proceedings in the board
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of review and the Property Tax Appeal Board, where the right of
taxing districts to intervene is not disputed. If such a thing is
occurring, no evidence of it has been brought to our attention.
The matters presently before us today further belie any concern
that taxing districts may come cascading into tax objection cases if
intervention is permitted. The tax objections in this case involve some
of the most valuable property in the entire state, in the state’s most
populous county, where taxing districts are abundant. Yet, in no case
was intervention sought by more than two districts. If that is the
situation at the high end of the assessment scale, it seems highly
unlikely that more routine cases will attract intervenors in any
significant numbers, if they attract any at all. In the overwhelming
majority of cases, participating in tax objection cases will simply not
be worth the taxing districts’ time and expense.
Whenever intervention is at issue, there is, of course, the potential
that addition of the new parties may create complications that
adversely affect the just and prompt resolution of the matter. No such
problems are evident to us in this case, however, and we think that
they are unlikely to occur where, as here, intervention is sought by a
taxing body. The goal of such taxing districts, after all, will normally
be the same as that of the county collector, namely, to defend the
assessment and argue against its reduction. Moreover, because the
interests of the taxing districts will coincide with those of the county
collector in most instances, it seems more likely that the legal and
evidentiary resources they bring to bear will help rather than hinder
the efforts of the State’s Attorney in representing the county
collector’s position. This is not idle speculation on our part. It is
supported by the county collector, herself, who candidly admitted in
her brief that the reason the State’s Attorney consented to the entry
of appearance by counsel for the City and the Board of Education in
the trial court in this case was because, among other reasons, she
believed “there existed a reasonable expectation that the Intervenors’
presence in the lawsuits would compliment rather than inhibit the
ongoing efforts of the State’s Attorney.”
We note, moreover, that to the extent that the participation of
intervenors may threaten to introduce complication or divisiveness
into tax objection cases, section 2–408 of the Code of Civil Procedure
(735 ILCS 5/2–408 (West 2002)) provides a complete solution.
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Under subsection (f) of the statute, quoted earlier in the opinion, the
court may impose a wide array of restrictions on what the intervening
parties may do, including prohibiting them from raising new issues and
barring them from interfering with the control of the litigation. 735
ILCS 5/2–408(f) (West 2002). As our summary of the proceedings
below indicated, the county collector expressly invoked this provision
in her submission to the circuit court and stated she would voice no
objection to intervention by the City and the Board of Education if
that intervention were subject to the restrictions permitted by
subsection (f). Nothing in the appellate court’s decision would
preclude the circuit court from utilizing subsection (f)’s restrictions in
fashioning an intervention order on remand as the county collector
proposed.
As a practical matter, the only conflict likely to occur between the
county collector and intervening taxing districts is if the State’s
Attorney, who represents the collector, believes that the dispute
should be compromised for a lower amount than the intervenors
would like. Again, however, the statutory scheme provides a complete
solution. Under the law, the State’s Attorney is the designated agent
for negotiating compromise agreements with the taxpayers. The
State’s Attorney, not the taxing districts, will therefore have the final
say. 35 ILCS 200/23–30 (West 2002). For all of these reasons, we
reject the notion that allowing intervention by taxing districts is
incompatible with the State’s Attorney’s constitutional and statutory
authority.
The county collector asserts that our decision in People ex rel.
Devine v. Murphy, 181 Ill. 2d 522 (1988), supports a contrary
conclusion. We disagree. The issue in Murphy was whether section
23–15 of the Property Tax Code (35 ILCS 200/23–15 (West 2002)),
which specifies, inter alia, that objections to assessments are to be
heard by the circuit court de novo, violates the separation of powers
provision of the Illinois Constitution (Ill. Const. 1970, art. II, §1) by
vesting in the judiciary discretionary powers which properly belong to
the executive branch of government. In rejecting that claim and
upholding the statute, we affirmed the principle that a State’s
Attorney’s compromise and settlement of a tax objection under
section 23–30 of the Property Tax Code (35 ILCS 200/23–30 (West
2002)) cannot be impeached “ ‘on the grounds that a better result
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should have been reached, or for any other reason short of fraud or
bad faith.’ ” People ex rel. Devine v. Murphy, 181 Ill. 2d at 538,
quoting People ex rel. Thompson v. Anderson, 119 Ill. App. 3d 932,
940 (1983).
Nothing in our decision today brings that proposition into
question. As we have just discussed, allowing intervention by taxing
districts in no way infringes on the authority conferred on State’s
Attorneys by section 23–30.
We turn then to the arguments against intervention advanced by
Madison Two and the other remaining tax objectors in this case.
Echoing the position of the county collector, they also contend that
permitting intervention would be an impermissible infringement of the
State’s Attorney’s constitutional and statutory powers. For the same
reasons set forth above, that argument is untenable.
The tax objectors further argue that individual taxing districts have
no legally cognizable interest in the outcome of challenges to
assessment valuations and therefore lack standing to participate in tax
objection cases. This argument is untenable as well. Taxing districts
have a direct and immediate stake in how assessment challenges are
decided, for if assessments are ultimately found to be excessive, the
portion of the taxes attributable to the over assessment must be
refunded, and the tax proceeds available to the taxing districts will
necessarily be reduced. While some taxing districts may ultimately be
able to make up for the shortfall in subsequent years by increasing
their tax rates, the objectors concede that others, including the
Chicago Board of Education, are subject to statutory rate limitations
and the Property Tax Extension Limitation Law (35 ILCS
200/18–185 et seq. (West 2002)), which may limit such opportunities.
Moreover, even where levies can be raised in the future, the fact
remains that in the particular year in question, the tax revenues
available to them will be lower than they otherwise would be.
That individual taxing districts have a legally cognizable interest
in tax assessment proceedings was recognized by the General
Assembly itself when it enacted the Property Tax Code. As we have
described, the Property Tax Code confers on taxing districts the right
to bring the initial challenge to an assessment in the board of review
(35 ILCS 200/16–95, 16–115 (West 2002)), to appeal the board of
review’s decision to the Property Tax Appeal Board (35 ILCS
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200/16–160 (West 2002); 86 Ill. Adm. Code §1910.10(c) (2007)
(amended at 21 Ill. Reg. 3706, eff. March 6, 1997); 86 Ill. Adm. Code
§1910.60(b) (2007) (amended at 31 Ill. Reg. 16222, eff. November
26, 2007)) and to intervene in a Property Tax Appeal Board appeal
initiated by the taxpayer (86 Ill. Adm. Code §1910.60(d) (2007)
(amended at 31 Ill. Reg. 16222, eff. November 26, 2007)). When they
are willing to meet statutory prerequisites, taxing districts also have
the same right as a property owner or any other person to initiate tax
objection cases in the circuit court (35 ILCS 200/23–5, 23–10 (West
2002)), and when the requirements of section 2–404 of the Code of
Civil Procedure (735 ILCS 5/2–404 (West 2002)) are satisfied, they
may be joined as parties in tax objection proceedings initiated by
others. 35 ILCS 200/23–15 (West 2002). The tax objectors’ claim
that taxing districts have no real interest the outcome of assessment
proceedings is flatly inconsistent with these provisions. To accept it
would therefore require our court to reject a determination that the
legislature has already made and which it unquestionably had the right
to make.
In an effort to avoid this problem, the tax objectors attempt to
draw a contrast between the way intervention is handled in Board
proceedings with the way it is dealt with in tax objection cases and to
suggest, thereby, that the legislature’s true intent was to prohibit
intervention. Indeed, they go so far as to argue that under the present
statutory scheme, the only proper parties to tax objection cases in
Cook County are the particular taxpayers with an interest in the
property and the State’s Attorney, as representative of the county
collector.
One can certainly see the practical advantages to such a system
from the property owner’s point of view. The probability is that the
only other parties who might be interested in participating in the case
will be entities such as taxing districts, whose interests will be adverse
to the owners’. Fewer parties therefore means fewer adversaries and
perhaps a correspondingly greater opportunity to persuade the circuit
court that their assessments should be lowered. Under the law,
however, the tax objectors’ theory cannot be sustained.
An immediate obstacle to their construction of the law is section
23–15 of the Property Tax Code (35 ILCS 200/23–15 (West 2002)),
the basic provision governing the procedures that must be followed in
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tax objection cases. That statute specifically authorizes joinder of
additional parties in accordance with section 2–404 of the Code of
Civil Procedure (735 ILCS 5/2–404 (West 2002)), whose provisions
this court has characterized as liberal. See Carter v. Chicago &
Illinois Midland Ry. Co., 119 Ill. 2d 296, 304 (1988). Because one
must first pay the tax in order to file a tax objection complaint and
then name the county collector as a defendant, the person who pays
the tax and the State’s Attorney will necessarily be involved in every
case. If the tax objectors’ theory were correct and those were the only
parties who allowed to participate in the litigation, there would thus
be no one left who would be el igible for joinder. If no one else can be
joined, the liberal joinder provision in the statute would be rendered
meaningless. Such a result would violate one of our most basic
precepts of statutory interpretation, namely, that whenever possible
courts must construe statutes so that no part is rendered a nullity.
Eads v. Heritage Enterprises, Inc., 204 Ill. 2d 92, 105 (2003).
The tax objectors’ attempt to distinguish the legislature’s
treatment of the Property Tax Appeal Board appeals from tax
objection cases is flawed for another reason as well. The Property Tax
Code is not more definite with regard to intervention in Board appeals
than it is in tax objection cases. Contrary to the tax objectors’
arguments, the law handles intervention in an analogous fashion under
both avenues of recourse. In Board appeals, just as in tax objection
cases, there is no specific provision authorizing intervention by taxing
districts. The right to intervention in Property Tax Appeal Board
proceedings is found in the agency’s administrative regulations
governing the procedures to be followed in cases brought before it for
decision. Likewise, the right to intervene in tax objection cases is
found in the statutory provisions governing the procedures circuit
courts must follow in cases brought before them for decision, namely,
the Code of Civil Procedure (735 ILCS 5/1–101 et seq. (West 2002)).
In each case it is the provisions governing the procedures to be
followed in the particular tribunal, not the Property Tax Code itself,
which fixes the terms for intervention. If the Property Tax Appeal
Board’s administrative rules may properly control intervention in
Board appeals, it is difficult to see why the Code of Civil Procedure
should not likewise control tax objection proceedings filed in circuit
court. Indeed, to the extent that the Code of Civil Procedure was
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promulgated by the legislature itself and not merely an administrative
body, its efficacy in this regard would seem to be greater, not less.
The statutory provisions governing tax objection cases at issue in
this case were enacted as part of the current Property Tax Code in
1994. When the General Assembly enacted that law, it did so against
the background of an existing legislative scheme that included section
1–108(b) of the Code of Civil Procedure (735 ILCS 5/1–108(b) (West
2002)). That statute expressly provides that where proceedings are
governed by some other statute, the other statute controls to the
extent it regulates procedure, but that article II of the Code, also
known as the Civil Practice Law (see 735 ILCS 5/1–101(b) (West
2002)), applies to matters of procedure not regulated by the other
statute. 735 ILCS 5/1–108(b) (West 2002). In light of this law, we
must presume that when the General Assembly enacted the tax
objection provisions of the Property Tax Code without including a
particular provision addressed to intervention in circuit court, it
intended the matter to be governed by the intervention provisions set
forth in article II of the Code of Civil Procedure. To our knowledge,
no published decision in this state has taken a contrary view. Even the
dissenting justice in the case before us did not question it. In
suggesting that we should construe the law as evincing an intention by
the General Assembly to bar intervention, the tax objectors have thus
gotten things exactly backward.
Faced with the weight of authority supporting the conclusion that
the law does authorize taxing districts to intervene in tax objection
cases, the tax objectors in this case advance one final argument. They
propose that we construe the governing provisions as permitting
intervention only in cases involving objections to the tax levy or rate,
and not in cases where, as here, the objection is to the amount of the
assessed valuation. This we cannot do. The procedures set forth in the
Property Tax Code regulating tax objections in the circuit court
govern whenever “any person desires to object to all or any part of a
property tax for any year, for any reason” (emphasis added) (35 ILCS
200/23–5 (West 2002)) and apply, without limitation, to objections to
taxes, levies or assessments (35 ILCS 200/23–15 (West 2002)). The
only type of objections subject to special limitations are: (1) those
claiming the property is exempt from taxation (see 35 ILCS 200/23–5,
23–25 (West 2002)) or (2) those based on “the forms of any budget
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or appropriation ordinance, or the degree of itemization or
classification of items therein, or the reasonableness of any amount
budgeted or appropriated thereby” (35 ILCS 200/23–35 (West
2002)). The objections at issue here do not fall within either of these
two categories. It is not within our power to declare the existence of
any additional exceptions, for a court may not add provisions that are
not found in a statute, nor may it depart from a statute’s plain
language by reading into the law exceptions, limitations, or conditions
that the legislature did not express. People v. Lewis, 223 Ill. 2d 393,
402 (2006).
For the foregoing reasons, the circuit court erred when it held that
taxing districts have no right to petition for leave to intervene in real
estate tax objection cases filed by taxpayers in the circuit court of
Cook County pursuant to the Property Tax Code (35 ILCS 200/1–1
et seq. (West 2002)). Accordingly, its orders denying the petitions for
leave to intervene filed by the City and the Board of Education were
properly reversed by the appellate court. Because the circuit court
ruled as a matter of law and did not reach the question of whether the
requirements for intervention under section 2–408 of the Code of Civil
Procedure (735 ILCS 5/2–408 (West 2002)) would otherwise have
been satisfied under the particular facts of these cases, the appellate
court also acted properly when it remanded the causes to the circuit
court for a hearing on the intervention petitions. The judgment of the
appellate court is therefore affirmed.
Affirmed.
JUSTICE BURKE took no part in the consideration or decision
of this case.
JUSTICE KILBRIDE, dissenting:
I respectfully dissent from the majority opinion on the merits of
the intervention issue. I write separately for two reasons. First, I agree
in general with the majority that the Code of Civil Procedure, rather
than the Property Tax Code, applies to intervention petitions in real
estate tax objection cases, but for different reasons. Second, I would
affirm the circuit court’s order denying the petitions to intervene
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because petitioners have failed to state a basis for intervention under
section 2–408 of the Code of Civil Procedure (735 ILCS 5/2–408
(West 2002)).
Unlike the majority, I find no support for intervention in the
Property Tax Code. The majority states: “the Property Tax Code
permits additional parties to participate in tax objection proceedings
in circuit court. They may do so through either joinder or
intervention.” Slip op. at 4. To the contrary, section 23–15 of the
Property Tax Code (35 ILCS 200/23–15 (West 2002)) only references
“[j]oinder of plaintiffs.” Joinder of plaintiffs and intervention are two
distinct procedural mechanisms. See 735 ILCS 5/2–204, 2–208 (West
2002). The Property Tax Code does not refer to intervention. I
therefore disagree with the majority’s statement that the Property Tax
Code permits intervention.
Nevertheless, section 1–108(b) of the Code of Civil Procedure
provides the answer:
“In proceedings in which the procedure is regulated by
statutes other than those contained in this Act, such other
statutes control to the extent to which they regulate procedure
but Article II of this Act applies to matters of procedure not
regulated by such other statutes.” (Emphasis added.) 735
ILCS 5/1–108(b) (West 2002).
Accordingly, absent a regulatory procedure in the Property Tax Code,
section 1–108(b) of the Code of Civil Procedure triggers section
2–408 of the Code of Civil Procedure on intervention in real estate tax
objection cases.
Despite section 2–408’s application in real estate tax objection
cases, I disagree with the majority that the denial of the petitions to
intervene must be reversed and the cause remanded with directions to
hold a hearing on the intervention petitions under section 2–408 (735
ILCS 5/2–408 (West 2002)). The record in this case shows that the
parties and the petitioners filed exhaustive briefs addressing the
adequacy of the petitions to intervene in the circuit court. During the
hearing on the petitions to intervene, the circuit court indicated any
decision on whether the petitions adequately plead facts to intervene
would be determined on the pleadings and briefs if the court’s ruling
should ultimately be reversed. No additional hearing on this issue was
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contemplated. None of the parties voiced objections or asked to be
heard on the issue. Moreover, the issue has been fully briefed before
this court. Therefore, I see no reason this court should not address the
issue, particularly since this court may affirm the circuit court’s
judgment on any basis contained in the record. Leonardi v. Loyola
University of Chicago, 168 Ill. 2d 83, 97 (1995) (“As a reviewing
court, we can sustain the decision of a lower court on any grounds
which are called for by the record, regardless of whether the lower
court relied on those grounds and regardless of whether the lower
court’s reasoning was correct”).
In my view, the petitions to intervene do not adequately allege a
basis for intervention under section 2–408(a). Section 2–408(a) of the
Code of Civil Procedure states:
“Intervention. (a) Upon timely application anyone shall be
permitted as of right to intervene in an action: (1) when a
statute confers an unconditional right to intervene; or (2)
when the representation of the applicant’s interest by existing
parties is or may be inadequate and the applicant will or may
be bound by an order or judgment in the action; or (3) when
the applicant is so situated as to be adversely affected by a
distribution or other disposition of property in the custody or
subject to the control or disposition of the court or a court
officer.” 735 ILCS 5/2–408(a) (West 2002).
First, section 2–408(a)(1) is inapplicable here because no statute
confers an unconditional right to intervene in real estate tax objection
cases. Next, to state a basis for intervention under section
2–408(a)(2), petitioners were required to allege specific facts
demonstrating that the State’s Attorney’s representation is or may be
inadequate and to allege specific facts showing that the petitioners will
or may be bound by an order or judgment in the real estate tax
objection case. The petitions allege that “[t]he State’s Attorney’s
Office devotes 17 to 18 assistant [S]tate’s [A]ttorneys to its Real
Estate Tax Division,” and that “[o]n average, each assistant must
handle over 300 specific objection cases in addition to their share of
the tax appeals filed before the Property Tax Appeal Board and in
addition to their other civil property tax caseload.” The petitions also
allege that “[t]he sheer volume of the State’s Attorney’s caseload”
combined with “the magnitude of the property tax refunds during the
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past two years ($382.0 million) and the magnitude of the Petitioners’
interest (70% of every refunded tax dollar) leads inexorably to the
conclusion that the State’s Attorney’s representation of the
Petitioners’ interest in this matter is or may be inadequate.” (Emphasis
in original.) The petitioners’ allegations of attorney caseload are
insufficient to support grounds for intervention under section
2–409(2). Allegations of attorney caseload do not “lead inexorably to
the conclusion” that the State’s Attorney’s representation in this case
will or may be inadequate. On their face, the petitions are legally
insufficient to meet the intervention requirements of section
2–408(a)(2).
The petitions further allege mere conclusions that “[o]n
information and belief, the State’s Attorney’s Office lacks the financial
resources to obtain appraisal reports in defense of the current
assessment on all but a small percentage of tax objection complaints
filed each year.” The petitions do not allege specific facts to support
this contention.
In fact, in its response to the petitions to intervene, the Cook
County State’s Attorney, on behalf of the county collector, denied
each allegation offered by the petitioners in support of the petition to
intervene “insofar as those allegations aver that the State’s Attorney
lacks the requisite resources, both in terms of professional staffing and
evidentiary appraisal resources, to conduct the adequate
representation of the several defendant interests in this case.” Without
more, petitioners only offered conclusory allegations. Petitioners have,
therefore, failed to state a basis for intervention under section
2–408(a)(2) of the Code of Civil Procedure.
The petitions also do not sufficiently allege a basis for intervention
under section 2–408(a)(3) of the Code of Civil Procedure. Under
subsection (a)(3), petitioners were required to allege specific facts
showing that they are “so situated as to be adversely affected by a
distribution or other disposition of property in the custody or subject
to the control or disposition of the court.” 735 ILCS 5/2–408(a)(3)
(West 2002).
The petitions allege a portion of petitioners’ revenue is generated
from real estate taxes collected by the Cook County treasurer and that
refunds of property tax revenues are paid by the county treasurer from
a taxing district’s current collections. To the extent the subject
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properties’ assessed values are reduced, petitioners allege they “will
suffer a combined direct revenue loss of $.70 for every dollar refunded
to the property owner[s].” Any such loss “directly reduces the revenue
that is available to the City to provide City services” and “reduces the
programs and educational opportunities the Board of Education is
able to offer the children of the City of Chicago.” The petitions
conclude, “[t]he petitioners are so situated as to be adversely affected
by any settlement or trial of this action that calls for any reduction in
the assessed value of the subject property.”
Those allegations are insufficient to satisfy the subsection (a)(3)
requirements. If the circuit court ultimately determines that the
plaintiffs’ properties are overassessed, it may direct the county
collector to distribute a refund to plaintiffs, and any refund “shall be
made *** from the next funds collected after entry of the final order
until full payment of the refund and interest thereon has been made.”
35 ILCS 200/23–20 (West 2002). Although the circuit court
potentially could require the tax collector to use future funds
collected, it does not provide a sufficient basis to demonstrate that
petitioners will be adversely affected. Taxing district revenue is not
derived from assessments, but from levies and the corresponding
rates. See People ex rel. Ingram v. Wasson Coal Co., 403 Ill. 30, 36
(1949) (the amount of tax extended upon any assessment is not
determined by the amount of the assessment, but by the demands of
the local taxing authorities). A refund suit, after the tax payment and
distribution, avoids injunctions against collection and disruption to
taxing district revenues while the taxpayers’ claims are litigated. See
Clarendon Associates v. Korzen, 56 Ill. 2d 101, 108 (1973). Thus, the
petitions fail to allege specific facts pursuant to section 2–408(a)(3),
indicating how petitioners are so situated as to be adversely affected
by a distribution or other disposition of property in the custody, or
subject to the control or disposition, of the court or a court officer.
Additionally, petitioners have failed to present any petition or
motion, as required by section 2–408(e). Section 2–408(e) requires a
petition for intervention be accompanied by the initial pleading or
motion for proposed filing. See 735 ILCS 5/2–408(e) (West 2002).
Here, petitioners filed a “response” to each assessment objection
complaint and an accompanying brief seeking increased assessments.
The Property Tax Code does not provide for petitioners seeking to
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intervene to file a response or to request an assessment increase.
Accordingly, petitioners have not complied with section 2–408(e).
For the foregoing reasons, I would affirm the circuit court’s order
denying the petitions to intervene. I therefore respectfully dissent.
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